Petitioner’s Claim for Surgery goes Up In Smoke

A recent decision by the Illinois Worker’s Compensation Commission gives Petitioners yet another incentive to quit smoking.  In Carolyn Schoonover, Petitioner v. Porta Cmty. Unit Sch. Dist.. #202, Respondent, 05 IL. W.C. 51841 (Ill. Indus. Com’n Aug. 18, 2015), the Petitioner’s surgeon had recommended a lumbar spine surgery but was unwilling to proceed with that surgery until the Petitioner had quit smoking cigarettes.  The surgeon’s insistence that the Petitioner quit smoking was based upon the effects that smoking would have on her recovery from surgery and also due to its negative impact on her underlying diagnosis as well.  The Petitioner’s own surgeon testified that the Petitioner had “delayed her own treatment by her continued smoking, and this is going to affect the level of function and degree of disability…”

The Respondent’s expert neurosurgeon testified that “smokers have a much higher rate of chronic low back pain and have a much higher, much longer healing rate for any soft tissue back injury, up to 30% longer.”

The Commission found that the Petitioner had not only failed to quit smoking but had been less than honest about her efforts to quit smoking.  The Commission found that the Petitioner had reached MMI on the date that her surgeon had informed her that he would not proceed with surgery unless the Petitioner quit.  The Commission also noted that the Petitioner’s failure to quit smoking, under the circumstances, was indicative of the true nature of the Petitioner’s condition, contrary to the Petitioner’s statements.  The Commission found that this case involved a Petitioner “who complains of significant and severe symptoms, but who is unwilling to do what she needs to do in order to obtain relief. In our view, this indicates that her symptoms must not be as significant as she claims, or she would have ended her smoking long ago.”

As an important side note here, the Arbitrator and Commission did hold the Respondent liable for the treatment associated with Petitioner’s smoking cessation efforts.

Keep in mind that in instances where the Petitioner fails to cooperate with rehabilitation efforts or is engaging in injurious practice, this can be a legitimate basis to terminate benefits.  As this case demonstrates, this can include a situation where an injured employee chooses to continue smoking rather than quitting, where quitting is required by a physician in order to proceed with surgery.

Thanks to attorney Michael Bantz for the summary of this important case for Illinois employers.

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